Friday, September 5, 2008

Two trends in P'sak: Autonomy of the posek vs. the importance of precedent

[Very rough draft - I really think the matter deserves a complete analysis - which I am not qualified to write]

In my study of Halachic literature, I have often noticed that there are two different schools of thought among posekim.

Among some Posekim[1], there is an attitude of "יקוב הדין את ההר". The posek analyses the sources and rules based on his own understanding of them. Even if his predecessors ruled differently or understood the sources differently - אין לו לדיין אלא מה שעיניו רואות and הלכה כבתראי as explained by the Rema [2] (CM 25). This school considers the autonomy of the Posek to be central whereas precedent is only important insofar as it helps the Posek clarify the sources but carries no weight on its own.

At the opposite extreme, lies those posekim who feel it necessary to cite and discuss every possible precedent on the issue[3]. These will rarely dismiss the earlier poskim based on their own reading of the sources but instead will insist that one must try to follow all opinions. According to this school, the fact that an eminent authority cites an opinion is itself of Halachic weight (perhaps of even greater Halachic weight then his own reading of the sources) and the autonomy of the Posek is limited.

There are of course a variety of positions between the two extremes. I believe it might be instructive before examining any posek to first identify to which school of pesak he belongs to analyse his pesak accordingly.

[1] The best example of this school of thought is R' Yaakov Emden who was fiercly independant in his pesakim (See for example this post in which the Yaavetz cites his father that - "Any dayan who is not willing to erase a seif in SA is not worthy of ruling. Mor U' Ketziah is simply full of examples in which the Yaavetz does just that.), then one might point to the Rogatchover who felt himself obligated to the Rambam only (note his correspondence with the SE that Marc Shapiro discusses in his book), and the final and most influential authority in this group is the Aruch Ha-Shulkhan who similarly is not afraid to argue against any of his predecessors if his own reading of the sources leads to a different ruling (See for example his ruling concerning one who skips p'sukei d'zimra if he need complete it after davening). R' Moshe Sternbuch in his Teshuvot V' Hanhagot is also roughly part of this group as he rarely cites Acahronim (but see his Hakdamah) but has his own highly original method of Pesak (see Tradition, R' Moshe Sternbuch's Halachic Novellae).

[2] Y. Ta Shema has an article on the principle of Halacha K'Basrai that is somewhat relevant here.

[3] The most important posek from this school of thought is the Mishna Berurah who cites every Acharon possible and considers them all obligatory (to some degree at least - cf. B. Brown's article in Contemporary Halacha on Soft-Stringency in the Mishna Berurah). A comparison - seif by seif of the Mishna Berurah and the Arukh HaShulkhan's stance to various issues would be most instructive (the new AS's with the MB on the bottom can give you some idea of the differences between them).

I do not know if Chacham Ovadiah belongs in this category. True he is careful to cite alll the Acharonim on any issue but I don't know to what extent he considers them obligatory. Perhaps he is simply trying to gather all the arguments relating to the subject together. The same applies to R' Yosef Zechariah Stern. (Benny Brown's article on "Hachmarah" should also be relevant.)


ADDeRabbi said...

Excellent post.
As soon as I started reading, I wondered if you were going to address Rav Ovadia. He lines up precedent better than anyone, but definitely has reaches independent conclusions.
IMHO, only when a posek makes a decision based on what he believes is the truth can be called "psak". is a rav says "we, such and such acharonim are machmir", that's not psak.
The truly great poskim never had a problem expressing an independent position (i understand that this might be construed as a "no true scotsman"-type statement; so be it).

Anonymous said...

My own gut reaction was that this breaks down, at least in modern times, between Sephardic and Ashkenazic (esp. Lithuanian)poskim, the latter seeming to almost take pride in their ignorance of a large part of Jewish halakhic literature. E.g. look at the sources at the end of any volume of Iggros Moshe. said...

Halachah k'basrai is very relevant here. In fact, it is pivotal. As Prof. Ta Shma who you referenced in your article) points out the Sephardic and Ashkenazic understanding of this principle differs greatly.
Among Ashkenazim there are two views. 1. The latest PUBLISHED posek is the basroi and we follow him. 2. The posek who is NOW considering the shailah is the basroi and has the right to follow his own judgment even against previosu poskim.R. Moshe Feinstein was such a posek.
Among Sephardim, all authorities are important, because halacha k'basroi is a principle that appleid to AMoraim and not in contemporary psak. So one collects all of them and follows the majority, which is the approach of R. Ovadiah.

wolf2191 said...

Many thanks for all comments, I shall try to discuss all of them in a future post. I am working on a post involving R' Moshe particulary right now.

Eliyahu said...

Let me try to give my understanding. Perhaps someone can then clarify whether I correctly understand the sources.

IIUC the basic accepted rules of pesak are found in SA CM25 (Hilchot Dayan She-Taah)The latter siman deals with the situation of a Dayan or a Posek who has erred. A posek may only be said to have erred in halacha if he has erred as to a Devar Mishnah (ruling against the Talmud or perhaps against the Shulchan Aruch) or the Sugya de-Almah, a consensus among poskim as to a halacha. Where there is no binding Devar Mishnah or Sugya de-Alma, the halacha is subject to the halachically limited discretion of the posek to apply his logical reasoning to determine the halacha based mainly on an understanding of the Gemorah. The posek if he is a "chacham gadol hayodeah lehachriah" must attempt to come to a decision if at all possible. He may not fall back upon the klallim applicable to safeikot (such as at in the Shach at the end of YD 242)unless he can not otherwise reach a definitive conclusion.

I think that this requirement that a posek reach a conclusion is also implied in the phrase: "...Ke-shem she assur lehatir et ha-assur kachassur leasor et ha-mutar(Talmud Yerushalmi Terumot end of c. 5, p. 30b (standard editions) and the end of Chaggigah c.1 which is cited in SEMAG Assiin 111 and in the Hagaot Maimoniot, Hilchot Mamrim, 1:5 (The latter references are from Y.Y. Brunstein, Avnei Gazit).

I would therefore think that posek must make a real effort to determine the actual halacha where it is not already determined as either a devar mishna or a sugya de-almah.

I haven't looked at the sources brought in our blog, above however perhaps I can speculate that the Sefardic poskim cited above are looking to the majority only if the posek can not reach a definitive conclusion. As far as the Ashkenazim: Rav Moshe, of course, does attempt to reach such a conclusion. I would also assume that those who say "halacha ke-batrai" among the Ashkenazim and follow the latest contemporary poskim are defining the "sugyah de-almah" as being synomous with "halach ke-batray" although I would assume that such would still require concensus among those "batrai" to then create a "sugyah de-almah". Unless of course Devar Mishnah and Sugyah de-almah refers only to the Amoraim and I understand that whether the latter is correct or whether we can have the SA (or later accepted sefarim) as a Devar Mishnah and poskim as Sugyah de-almah is itself a disputed issue.

I would appreciate any comments as to whether I understand the above correctly.

Wolf2191 said...

"Ke-shem she assur lehatir et ha-assur kachassur leasor et ha-mutar"

There is a fascinating Chazon Ish which neutralizes this statement. See Benny Browns article on Hachmara.

Cf. Tosafos in Avodah Zarah 7a - s.v. Ha-Nishal.

Eliyahu said...

Wolf2191 said...
"Ke-shem she assur lehatir et ha-assur kachassur leasor et ha-mutar"

There is a fascinating Chazon Ish which neutralizes this statement. See Benny Browns article on Hachmara.

****Thank you. I would appreciate reading the article. However, the link took me only to the Union Catalogue. Could you please provide the journal name and citation.

Cf. Tosafos in Avodah Zarah 7a - s.v. Ha-Nishal.

***** But doesn't this Tosfot deal with whether someone can re-ask his sheilah to another chacham. My reference, IIUC, was as to whether a Rav could declare something assur without sufficient iyun as to whether there were in fact grounds to declare it muttar and thus he had caused an unnecessary monetary loss.

Wolf2191 said...

You are correct about that Tosafos. But he quotes the Yerushlmi you mention and dismisses it (if I remember correctly).

micha said...

Now that it's too late, I'm asking permission. (Sorry, I goofed.)

I took the conversation from here and Avakesh and posted it to Avodah. See this in the archives.


wolf2191 said...

No problem, I don't mind at all.

Anonymous said...

See my review of R'HS shiur on hirhurim - he clearly falls in the yikov hadin camp

Joel Rich

wolf2191 said...

Here -

Can you elaborate on this comment -"mishnah brurah turned the whole world upside down"

This sound like Prof. Chaim Soloveitch argument in "Rupture"


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